State Bar of Arizona Ethics Opinions

12-02: Advertising; False or Misleading Communication

2/2012

ER 7.1 prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services. Under this rule, the name under which a lawyer practices law may be misleading if, for example, it is materially different from the name appearing on the records of the State Bar of Arizona. On the other hand, a lawyer may, for purposes of engaging in an activity that does not constitute the practice of law, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so.

FACTS

Situation #1

As appears from the records of the State Bar of Arizona, Susan Formername is a lawyer. In the near future, she intends to marry Robert Newname. She will continue to practice law as “Susan Formername,” but, after her marriage, plans to be known for social and personal purposes, unrelated to the practice of law, as Susan Newname.

Situation #2

A person who is admitted to practice law in Arizona writes murder mystery novels. He wishes to use a pen name or other pseudonym when writing the novels.

QUESTION PRESENTED

Are the activities described above ethically permissible?

APPLICABLE ARIZONA RULES OF PROFESSIONAL CONDUCT (“ER __”)

ER 7.1 Communications Concerning a Lawyer’s Services

A lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

RELEVANT ETHICS OPINION

South Carolina Op. 07-05

OPINION

“The general rule applicable to a change of name is that a person may, in the absence of a fraudulent or improper motive, adopt any name by which he chooses to be known.” Malonev. Sullivan, 124 Ariz. 469, 470, 605 P.2d 447, 448 (1980). “In the absence of a statutory restriction, one may lawfully change his name without resort to legal proceedings.” Laks v.Laks, 25 Ariz. App. 58, 60, 540 P.2d 1277, 1279 (Div. 2 1975) (internal citations omitted).

A lawyer who is engaged in the practice of law, however, is bound by ER 7.1, which provides in relevant part that “[a] lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication about the lawyer or the lawyer’s services.” In our view, a lawyer who practices law under a name materially1 different from that which appears on the records of the State Bar of Arizona makes a statement about himself or herself that is at least misleading. A client or other third party who is given the different name may not be able to verify the lawyer’s eligibility to practice law, obtain the lawyer’s address, telephone number, or other contact information, learn about any prior disciplinary history that the lawyer may have, or determine whether the lawyer carries professional liability insurance. If a lawyer desires to change the name under which he or she practices law, the lawyer must follow the applicable procedures for effecting such change of name on the records of the State Bar of Arizona.

A lawyer who engages in an activity that does not constitute the practice of law, may, for the purpose of engaging in that activity, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so. Thus, a lawyer who changes his or her name upon marriage may continue to practice law under the former name and use the married name for personal or social purposes unrelated to the practice of law. See South Carolina Op. 07-05 (July 19, 2007).2 A lawyer who writes books or articles, or who otherwise engages in an activity that does not constitute the practice of law, may, for purposes of engaging in that activity, adopt a pen name or pseudonym, without violating the Rules of Professional Conduct.

CONCLUSION

ER 7.1 prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services. Under this rule, the name under which a lawyer practices law may be misleading if, for example, it is materially different from the name appearing on the records of the State Bar of Arizona. On the other hand, a lawyer may, for purposes of engaging in an activity that does not constitute the practice of law, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.

1What constitutes a “material” difference will depend on the facts of each case. Immaterial differences include the use of a common nickname (e.g. Charles – Chuck, Richard – Dick, Robert – Bob, etc.).

2We express no view on that portion of the South Carolina opinion that discusses whether a law firm may retain, as parto of its name, the former surname of lawyer who now practices under a different surname.